Charles Edward Thomas v. United States

May 12, 1967

23302

Versions:377 F.2d 118

1967 U.S. App. LEXIS 6392

HUTCHESON, Circuit Judge:

Convicted on two counts of forgery in violation of 18 U.S.C. § 495 аnd sentenced to four years on each count, the sentences to run concurrently, Thomas appeals, cоmplaining of the denial by the district court of a motion to suppress from evidence testimony concerning his oral cоnfession. We affirm.

Appellant Thomas was arrested by Bobby Woodham, a Secret Service agent, on January 8, 1965. In making the аrrest without a warrant, Woodham relied on the following information. He had been told by one Charles Porter, a co-defendant in the trial below who does not appeal, that Porter had used his car to drive appellant, two women, and another man to a liquor store for the purpose of cashing a check. The two women went inside the store while the mеn waited in the car. After the check was cashed, Porter said he received $5 and a fifth of whiskey for his transportation services, and the other parties split up the money obtained from the check. In addition, Woodham was acquainted with аppellant whom he had investigated in 1963, also for forgery.

Upon making the arrest, Woodham advised appellant that he had a right to remain silent, that anything he said could later be used against him, and that he had a right to counsel. Appellant indicаted he was well aware of his rights.

Shortly thereafter appellant was taken to appear before a United Stаtes commissioner. While waiting in the anteroom of the commissioner’s courtroom prior to the hearing, he was served with а warrant based on Woodham’s complaint. After again being advised by Woodham as explained above, appеllant ‍‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‍stated to the agent that he knew a lot about the forgery and wished to make a complete confession which would involve many people. Woodham did not inquire as to the content of such a statement but instead replied that appellant could come by Woodham’s office after the hearing if he wished.

In the hearing appellant was properly advised of the charge against him, his right to counsel, and his right to a preliminary hearing. Afterwards he was released on a personal recognizance bond. He proceeded, apparently directly, to Woodham’s office. Aftеr once more being advised of his right to counsel and to remain silent, appellant confessed. At trial Woodham was рermitted to testify, over objection, to the substance of the confession.

The principal ground urged for reversal is thаt appellant’s arrest was illegal, because it was made without either a warrant or probable cause, and thаt this illegality tainted the confession so as to render it inadmissible. We do not pass upon the legality of the arrest, for assuming, withоut deciding, that the arrest was unlawful, we hold that under the facts of this case any taint arising from the arrest had dissipated beforе the confession was given.

*120 Wong Sun v. United States, 371 U.S. 471, 83 S.Ct. 407, 9 L.Ed.2d 441 (1963), is the leading ease on the question whether, where evidence is obtained following an illegаl arrest, intervening circumstances have occurred which sufficiently remove the taint, attributable to the arrest, from the evidence so as to permit its introduction at trial. This Court has construed Wong Sun in Rogers v. United States, 330 F.2d 535 (5th Cir.), cert. denied, 379 U.S. 916, 85 S.Ct. 265, 13 L.Ed. 2d 186 (1964):

“The arrests in Wong Sun were found to be without probable cause. A statement made by defendant Blackie Toy contemporaneous with the arrest which followed a forced entry into the Toy residence was found ‍‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‍to be so intimately bound up with the conditions and circumstances of the arrest as not to be an act of a wholly free will. The contention that Toy’s statement was freely given was said to take

‘insufficient account of the circumstances. Six or seven officers had broken the door and followed on Toy’s heels into the bedroom where his wife and child were sleeping. He had been almost immediately handcuffed and arrested. Under such [oppressive] circumstances it is unreasonable to infer that Toy’s response was sufficiently an aсt of free will to purge the primary taint of the unlawful invasion.’ 371 U.S. at 486, 83 S.Ct. at 416, 9 L.Ed.2d 441. (emphasis added)

On the other hand, Wong Sun following his illegal arrest was released on his own recognizance. He returned to the police a few days later to make a statement the admissibility of which was bеing contested. The connection between the arrest and the evidence ‘had become so attenuated as to dissipate the taint. Nardone v. United States, 308 U.S. 338, 341, 60 S.Ct. 266, 84 L.Ed. 307.’ 371 U.S. at 491, 83 S.Ct. at 419, 9 L.Ed.2d 441.” 330 F.2d 540-541.

This Court said further that the ‍‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‍Supreme Court had indicated in Wong Sun “the necessity for the intervention of a clear act of free will on the part of the defendant in order to purge the evidence of its stigma.” 330 F.2d 541. In holding that there was a sufficient evidence of freedom of mind to support a conclusion that any illegality involved in Rogers’ arrest could not have infected his later statements, we took into account several factors: the lack оf “oppressive circumstances”, of which Wong Sun speaks, 1 surrounding the arrest of the defendant; a three hour delay between arrest and statement; a noncontinuous interrogation; and the defendant’s intervening refusal to confess. 330 F.2d 542. We think that the- evidence of freedom ‍‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‍of mind is clearer here than in Rogers. The appellant likewise was not arrested under oppressive circumstances; he was not interrogated; and the delay between arrest and confession was approximately the same as in Rogers. But in addition, prior to confessing, 2 appellant had a hearing before a commissioner who advised him of his right to counsel, and significantly was releаsed on his own personal recognizance, as was Wong Sun. It was thereafter that appellant went to Woodham’s office to confess. We conclude that under these circumstances appellant’s confession was an aсt of free will and untainted by the arrest. See Commonwealth of Pennsylvania ex rel. Craig v. Maroney, 348 F.2d 22, 29-30 (3d Cir. 1965), cert. denied, 384 U.S. 1019, 86 S.Ct. 1966, 16 L.Ed.2d 1042 (1966).

Because appеllant’s confession was admissible even assuming he was arrested unlawfully, there was no error in denying the motion to suppress. The judgment accordingly is affirmed.

Notes

. See 371 U.S. at 486, n. 12, 83 S.Ct. 407.

. The statements made to Woodham prior to the hearing merely indicated that appellant desired ‍‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‍to confess, but the details of the confession were not revealed until after the hearing.